State v. R.E.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.R.E., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 06-01-0109.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 5, 2009

Before Judges Sabatino and J.N. Harris.

Defendant R.E. appeals from an order, dated February 22, 2008, denying his petition for post-conviction relief (PCR), which was filed on August 27, 2007. In this appeal, defendant advances three points for our consideration:

POINT I: THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT I(A): DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF ALL PRIOR COUNSEL TO RECOGNIZE THAT THE ACCUSATION FILED AGAINST THE DEFENDANT WAS DEFECTIVE IN THAT IT DID NOT CHARGE THE DEFENDANT WITH A CRIME. (NOT RAISED BELOW). POINT II: DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED, THE JUDGMENT SHOULD HAVE BEEN VACATED, AND THE NOT GUILTY PLEA SHOULD HAVE BEEN REINSTATED.

Distilled to their essence, these arguments raise two principal aspects of the proceedings below. First, defendant asserts that the accusation for which he gave a factual basis, was convicted upon, and received an agreed-upon sentence did not, in fact, actually charge him with a crime. We find this argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Second, he argues that his attorney failed to properly advise him as to the collateral consequences of the conviction insofar as it might affect his later tier classification pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21. We believe that the proceedings below understandably failed to fully import the detailed analysis of State v. Slater, 198 N.J. 145 (2009)*fn1 into the ineffective assistance of counsel calculus. Thus, we reverse and remand for further proceedings.

I.

Defendant's conviction and sentence arose out of alleged sexual contact with an adult, A.P. (also known as A.H), that occurred on December 3, 2005. Less than six weeks later, on January 11, 2006, defendant waived an indictment and entered a plea of guilty to a one-count accusation for fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The totality of the factual basis given to support the plea was the following terse interchange:

Q: On the 3rd of December 2005, were you in Lindenwold?

A: Yes.

Q: And on that date did you have some kind of contact with [A.P.] and a person we now know to be [A.H.] (phonetic)?

A: Yes.

Q: And was that in the form of a sexual contact in which you touched some intimate part of his body for purpose of ...

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